Op-Ed: Justice Blackmun Once Stood for Dependent Children's Protection, Then Came Roe v. Wade
It’s time for a seemingly gutless Supreme Court to stop evading the real issues at stake in the recent states’ challenges to Roe v. Wade.
On Monday, the Supreme Court ignored the wanton cruelty and injustice of so-called “lawful” abortion — the disgustingly inhumane “dilation and evacuation” method of killing unborn children who have lived 15 weeks or more in their mothers’ wombs.
In Cameron v. EMW Women’s Surgical Center, the justices preferred to take up a mere procedural issue. They have refused to weigh in on the constitutionality of the Kentucky law itself, a law that tried to provide some limited legal protection for each innocent unborn child at risk of lethal “treatment.”
Once again, the court balked at the jump when faced with recognizing the legitimacy and urgency of a protective law for what Roe v. Wade called “the unwanted child.”
Having swallowed for some fifty years now the camel of a pregnant woman’s absolute ownership and killing rights over her unborn child, a Supreme Court majority strains at a gnat today — the gnat of “sufficient standing.”
No, this is not the time for a nervous, jelly-bellied Supreme Court to prevaricate on whether Kentucky’s attorney general should have “sufficient standing” to exercise his God-given duty to defend the lives of those newest, most innocent members of “our Posterity” targeted for convenient killing in an abortion clinic.
The Supreme Court knows full well that on the most essential life and death protections, We the People do have standing. The opening words of the Constitution give us that standing.
But more imperative than mere standing, We the People have an irrevocable duty to secure the blessings of liberty not just to ourselves but to our posterity.
We the People, all of us, have the constitutional duty to protect members of “our Posterity” targeted for prenatal killing.
And who are our posterity? Our children and our children’s children and so on, including those already here: not just those already born, but also those already conceived, already present, alive and kicking in their mothers’ wombs.
Protection for each and every member of our posterity is one of the blessings of liberty to be secured for all our offspring. No exceptions as to our children in the womb were stipulated, envisaged or authorized during the debates and drafting of either the Constitution or the Fourteenth Amendment.
It follows then that the Fourteenth Amendment could not have removed for some members of “our Posterity” equal rights with ourselves to legal protection.
Under that Amendment, the state is prohibited from denying any person “life, liberty, or property, without due process of law,” and cannot “deny to any person within its jurisdiction the equal protection of the laws.” See Michael Paulsen’s “The Plausibility of Personhood” (2013) and Joshua Craddock’s “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?” (2017).
Blackmun’s Backflip in Roe
Looking back at Roe v. Wade, we can see now that it was an exercise in evasion of our constitutional duties toward our posterity that introduced this travesty of abortion “rights” under the flimsy and far-too-hastily erected umbrella of so-called privacy rights.
It seems ironic now that Justice Harry Blackmun himself had concluded correctly in his very first majority opinion as a Supreme Court justice, Wyman v. James (1971), that the public’s interest in protecting a dependent child in troubled and uncertain circumstances and in ensuring that the child’s basic needs were being met by the child’s mother did not violate any rights protected by the Fourth and Fourteenth Amendments.
It did not fall, he said, within the Fourth Amendment’s proscription of invasion of the privacy of the child’s mother.
Logical consistency should have required Blackmun to recognize almost exactly two years later in Roe v. Wade that state protection for a dependent child at risk of a procured abortion also “does not descend to the level of unreasonableness” on privacy grounds.
This should have been recognized for the same reasons given by Blackmun in the earlier opinion:
“The public’s interest in this particular segment of the area of assistance to the unfortunate is protection and aid for the dependent child … The focus is on the child, and, further, it is on the child who is dependent. There is no more worthy object of the public’s concern. The dependent child’s needs are paramount, and only with hesitancy would we relegate those needs, in the scale of comparative values, to a position secondary to what the mother claims as her [privacy] rights.”
To Blackmun’s credit, this understanding in Wyman v. James (the dependent child’s needs being paramount) was rightly consistent with the Constitution in its opening statement of purposes, which recognized a fundamental duty toward our children and our children’s children.
Yet, in Roe v. Wade, Blackmun elevated the mother’s privacy rights to authorize the dependent child’s mandatory eviction while in her or his first home in the mother’s womb.
Abruptly and without the prudent consideration warranted, Blackmun let his new seemingly unbounded power as a Supreme Court justice go to his head.
In a muddled and sickening opinion, he removed the constitutional obligations required by our connectedness to our posterity. He then replaced them with a radically selfish individualism that was never present in the highly principled moral philosophy that underpinned the Founders’ Constitution.
Indeed, such a selfish individualism is contrary to the stated purposes of the Constitution, which was agreed to and adopted as a responsible and unselfish commitment to the general welfare — the common good — and to securing the blessings of liberty not just to ourselves but also to our posterity.
Our constitutional duties (as mothers and fathers to our posterity) require us specifically to secure the same blessings of liberty for our children as we secure for ourselves.
Self-Centered Liberty for “The Woman” vs. Equal Protection for Her Child
Contrary to the Constitution’s spirit of inclusion and solidarity, Justice Blackmun espoused too rashly that very same self-centered liberty preached by plaintiff’s counsel Sarah Weddington to the Supreme Court justices in the first oral argument leading into the Roe v. Wade decision. Regarding the Fourteenth Amendment, she argued:
“In as far as ‘liberty’ is meaningful, that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy.”
Yet right from the Constitution’s opening statement of one of its purposes — to “secure the Blessings of Liberty to ourselves and our Posterity” — the Constitution recognized a fundamental and universal duty toward “our Posterity.”
To this day, this original duty remains, a duty to be realized toward our children, our grandchildren, those already born and those who are already here alive and flourishing in their mothers’ wombs, preparing for the next stage of their lives.
Judicial Mistakes and the Execution of Innocents
The truth is that in regard to our founding constitutional duty to secure the same blessings for our posterity as for ourselves, Roe v. Wade made a grave and deadly mistake.
The Supreme Court has always had the capacity to make serious errors. But with a few infamous exceptions such as Dred Scott v. Sandford, the justices have exercised their capacity and their duty to correct those errors.
Our current Supreme Court justices of integrity should shoulder their responsibility to correct old mistakes that continue to authorize the killing of unborn children. As years go by, stubborn justices should not be permitted to continue to conceal the court’s mistakes under the fake rhetoric of “longstanding precedent.”
Following Easter, many Americans will recall once again the infamy of Pontius Pilate, a powerful judge who knew that Jesus was innocent but lacked the courage and integrity to defend his innocence against the clamorous mob.
We hope and pray for our Supreme Court justices, that they will find the courage to defend the innocents who continue to be executed in abortion clinics today.
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